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ELCStruck Out

Lameck & another v Methodist Church in Kenya Registered Trustees & 3 others (Environment & Land Case E007 of 2024) [2024] KEELC 6463 (KLR)

Environment and Land Court
26 September 2024
LNL. L. Naikuni
5,013 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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The Mombasa Environment and Land Court struck out a suit against Kenya Power, ruling that electricity supply complaints must first go to EPRA and the Energy Tribunal.

What this practically means

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Executive summary

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The 3rd Defendant, Kenya Power and Lighting Company Limited, raised a four-ground Notice of Preliminary Objection dated 19th March, 2024 against the Plaintiffs' Plaint and Notice of Motion, both dated 12th February, 2024, contending that the Court lacked jurisdiction because the suit offended section 7 of the Civil Procedure Act (res judicata), the Energy Act, 2019 and its dispute resolution Regulations, Articles 159(2)(c) and 169(1)(d) of the Constitution read with the Fair Administrative Action Act, and because the Court's only competence was appellate under section 37 of the Energy Act. The matter proceeded without written submissions having been accessed. Justice L. L. Naikuni framed three issues: whether the objection met the Mukisa Biscuits threshold of a pure point of law; whether the Court had jurisdiction; and costs. He held the objection raised pure points of law. On res judicata, he found the suit fell 'on all fours' with Mombasa ELC Case No. 589 of 2011, decided on 16th December, 2019, between substantially the same parties over the same property, warning that adding or removing litigants cannot sanitize a res judicata suit. On the Energy Act grounds, applying Kibos Distillers, Ambuti Adega, Nicholus and Karume, he held that as the Plaint alleged no constitutional violations and its grievances concerned electricity supply by a licensee, the dispute belonged first before EPRA, then the Energy Tribunal, with any appeal lying to the High Court on a point of law only; the ELC could sit only as an appellate court. The preliminary objection was upheld in its entirety, the Plaint and Notice of Motion were struck out for want of jurisdiction, the suit was declared res judicata, and costs of the objection and the suit were awarded to the Defendants.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the objection meets the required threshold of an objection based on law and precedents
  2. 2.Whether the Court has jurisdiction to hear and determine the suit
  3. 3.Who bears the costs of the Notice of Preliminary Objection dated 19th March, 2024

Key legal issues

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01

Whether the preliminary objection met the Mukisa Biscuits threshold of a pure point of law

Holding

The Court was satisfied that the objection raised pure points of law on jurisdiction and res judicata, fitting the established definition.

Reasoning

The Court applied the classic definition from Mukisa Biscuits v West End Distributors and its progeny, holding that the objection went to the court's jurisdiction and to res judicata, both pure questions of law requiring no ascertainment of facts or exercise of judicial discretion.

p. 3
02

Whether the suit was res judicata under section 7 of the Civil Procedure Act

Holding

The suit was res judicata, being substantially similar to Mombasa ELC Case No. 589 of 2011 decided on 16th December, 2019.

Reasoning

The same parties (or parties under whom they claim) litigated the same suit property in the earlier ELC suit, determined by Justice A. Omollo. The Plaintiffs admitted being parties and that the suit property was the same, placing the matter squarely within section 7 and the Henderson v Henderson principle.

p. 6
03

Whether the dispute fell within the Energy Act dispute resolution mechanism, ousting the Court's original jurisdiction

Holding

The grievances were complaints against a licensee (KPLC) that should first go to EPRA, then on appeal to the Energy Tribunal, with ELC jurisdiction being appellate only.

Reasoning

Applying Kibos Distillers, Ambuti Adega, Nicholus and Karume, the Court held that because the Plaint alleged no constitutional violations, the three-tier statutory mechanism (EPRA, Energy Tribunal, and appeal to the High Court on points of law) had to be strictly followed, so the ELC lacked original jurisdiction.

p. 7

Legal principles established

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  • A preliminary objection must be raised on a pure point of law and no fact should need to be ascertained
  • Where a clear statutory procedure for redress exists, that procedure should be strictly followed, and a superior court's original jurisdiction does not oust the jurisdiction of competent statutory organs
  • Adding or subtracting litigants does not circumvent the doctrine of res judicata

Court orders

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  1. 1.The Notice of Preliminary Objection dated 19th March, 2024 is found to have merit and is upheld
  2. 2.The suit instituted through the Plaint dated 12th February, 2024 and the Notice of Motion application dated the same day by the Plaintiffs stand struck out for lack of jurisdiction
  3. 3.The suit is held to be res judicata in respect of Mombasa ELC Case No. 589 of 2011 – Askeli Lameck & 121 others v Methodist Church in Kenya Trustees & 7 others
  4. 4.The costs of the Notice of Preliminary Objection dated 19th March, 2024 to the 3rd Defendant; the Defendants shall have the costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

LN
majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 and the Environment and Land Court Act, No. 19 of 2011

Relief refused

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Plaintiffs' suit and Notice of Motion dated 12th February, 2024, including the permanent injunction and general damages sought against the 3rd Defendant

The suit was res judicata and the dispute fell within the statutory dispute resolution mechanism under the Energy Act, with the ELC's role limited to appellate jurisdiction from the Energy Tribunal

p. 9

Costs

The costs of the Notice of Preliminary Objection dated 19th March, 2024 to the 3rd Defendant. The Defendants shall have the costs of the suit.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That the Notice of Preliminary Objection dated 19th March, 2024 be and is hereby found to have merit and the same is upheld.
p. 10Disposition - preliminary objection upheld
That the suit instituted through the Plaint dated 12th February, 2024 and the Notice of Motion application dated the same day by the Plaintifis herein stand struck out for lack for jurisdiction.
p. 10Final orders - suit struck out
That this Honourable Court do and hereby hold that this suit is Res judicata in respect to Mombasa ELC Case No. 589 of 2011 – Askeli Lameck & 121 others – Versus – Methodist Church in Kenya Trustees & 7 others; as it is the court does not have jurisdiction to hear and determine it.
p. 10Res judicata finding in final orders
That the costs of the Notice of Preliminary objection dated 19th March, 2024 to the 3rd Defendant. The Defendants shall have the costs of the suit.
p. 10Costs
In a nutshell, therefore, I find this suit and the notice of motion application dated 12th February, 2024 to be res judicata and an abuse of the court process.
p. 6Res judicata and abuse of process

Issues in the judgment

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minor

The case number and full party names of the suit before the court are never stated in the judgment; the title and case number fields could not be populated from the text.

minor

The judgment refers inconsistently to the prayer numbers of the preliminary objection, describing the Fair Administrative Action Act ground variously as prayer 3 and prayer 4, and section 37 of the Energy Act is quoted under a caption mislabelled '36'.

minor

The objection's Fair Administrative Action Act ground is described as premised on the 'doctrine of constitutional avoidance', which does not correspond to the res judicata and statutory-forum grounds actually decided.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Lameck & another v Methodist Church in Kenya Registered Trustees & 3 others (Environment & Land Case E007 of 2024) [2024] KEELC 6463 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6463/eng@2024-09-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.